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Item D4 CARD OF COUNTY C' OMMISSIONW- S AGENDA ITEM SUMMARY Meeting Date: JULY 16, 2014 Division: TDC Bulk Item: Yes X No Department: Staff Contact Person/Phone#:- Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of agreement with Keys Association of Dive Operators, Inc. to oversee the Monroe County TDC Dive Umbrella (an advisory committee to make marketing recommendations to the TDC and BOCC concerning dive/snorkeling related marketing activities) commencing October 1, 2014 and terminating on September 30, 2017 with an option to extend for one additional two (2) year period. ITEM BACKGROUND: TDC approved same at their meeting of June 10, 2014. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: New Agreement STAFF RECOMMENDATIONS: Approval TOTAL COST: NO COMPENSATION BUDGETED: Yes X No COST TO COUNTY: NO COST SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes X No AMOUNT PER MONTH Year APPROVED BY: County Afty X OB/Pures ng X Risk Management , X DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM# Revised 11/06 MONROEPUNTY BOARD OF COUNTY COMPSSIONERS CONTRACT SUMMARY Contract with: Keys Association of Dive Contract# 1339 Operators,Inc. Effective Date: 10/1/14 Expiration Date: 9/30/17 Contract Purpose/Description: Approval of agreement with Keys Association of Dive Operators, Inc. to oversee the Monroe Count y TDC Dive Umbrella an advisory committee to make marketin recommendations to the TDC and BOCC conceminq divelsnorkefing-related marketing activities) commencing October 1 2014 and terminating on September 30, 2017 with an option to extend for one additional two (2) year period. Contract Manager: -Maxine Pacini 3523 TDC # 3 (Name) (Ext.) (Department/Stop—#) for BOCC meeting on 7/16/14 Agenda Deadline 7/1/14 CONTRACT COSTS Total Dollar Value of Contract: $ Current Year Portion: $ Budgeted? Yes® No n Account Codes : NO COMPENSATION Grant: $ County Match: $ ADDITIONAL COSTS Estimated Ongoing Costs: $-----jyr For: (Not included in dollar value above) (eg.maintenance,utilities,janitorial,salaries,etc.—) CONTRACT REVIEW Changes Date Out DatorIn Needed ie—w"-- Division Director Yesr_1 No© .04 '�4 � I I_�/;////111/I Risk Managem ent Yesn Nog`' O.M.BJPS�hasing Yesn No ojl' , )-', z0w4_tj-'L__ County Attorney T YesEl Limbert-Barrows 1441 Comments: OMB Form Revised 2/27/01 MCP 42 DIVE UMBRELLA AGREEMENT THIS AGREEMENT ("Agreement"), made and entered into this day of _, 2014, A.D., by and between MONROE COUNTY, FLORIDA, (hereinafter called the "County"), and Keys Association of Dive Operators, Inc., (hereinafter called the "Contractor"). WHEREAS, the County wishes to enter into this Agreement with Contractor, so that Contractor will oversee the Monroe County Tourist Development Council ("TDC") Dive Umbrella, an advisory committee to make marketing recommendations to the TDC and the Monroe County Board of County Commissioners ("BOCC") concerning dive/snorkeling related marketing activities; NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein and for the consideration hereinafter set forth, the parties mutually agree as follows: 1. The Agreement: This Agreement constitutes the entire Agreement between the County and the Contractor for the services contemplated herein. Any amendments or revisions to this Agreement must be in writing and be executed in the same manner as this Agreement. 2. Scope of Work: Contractor shall provide Dive Umbrella services for the County as described below: A. Contractor shall establish an annual recommended line item breakdown of a budgetary allocation provided by the TDC , including but not limited to the following: 1. Media placement advertising for Florida Keys diving/snorkeling industry. 2. Any diving event (Trade Show) to be sponsored by the TDC. 3. Public relations for the Florida Keys diving/snorkeling industry. B. Contractor shall make marketing recommendations to the TDC by those members who sit on the Dive Umbrella Recommendation Committee based on proposals by the Agencies of Record. There shall be five (5) members, one each representing the five TDC districts. Recommended appointments will be approved by the TDC. Any subsequent changes to the Recommendation Committee shall be provided in writing to the TDC Administrative Office for approval by the TDC. C. Contractor shall not receive any administration compensation, directly or indirectly, out of the TDC Dive Umbrella funds. TDC shall pay advertising and promotional vendors directly upon receipt of properly approved invoices. D. Contractor shall provide a schedule of Dive Umbrella meeting dates, to include start time and venue, to the TDC Administrative Office. E. Contractor shall inform the TDC administrative office of all Dive Umbrella meetings no later than 20 days prior to the meeting date. Contractor shall provide the date, time, venue and reason for the meeting. Upon receipt of the meeting information, the TDC Keys Association of Dive Operators Dive Umbrella-2014 ID#: 1339 administrative office shall place a public notice on the Monroe County official website under Notice of Meetings. F. Contractor shall provide a copy of the agenda and all attachments to the TDC Administrative Office no later than seven (7) working days prior to each regularly scheduled meeting. G. Contractor may provide research information and contribute statistics and scientific information for the TDC and the dive/snorkeling industry. H. Contractor shall maintain adequate staffing levels to provide the services required under the Agreement. 1. Contractor, upon the request of the TDC, shall be required to provide a representative at a public meeting to address Dive Umbrella issues and/or make a presentation. 3. Payments: Contractor is responsible to assist the agencies of record and TDC staff in submitting invoices and support documentation acceptable to the County's Finance Department for reimbursement. 4. Term of Agreement: The term of the Agreement is for three years, commencing on the Ils' day of October, 2014, and ending on the 30th day of September, 2017. In addition the County shall have the option to extend the Agreement for one additional two (2) year period. 5. Contractor's Acceptance of Conditions: The Contractor hereby agrees to carefully examine the scope of services and assumes full responsibility therefore. Under no circumstances, conditions, or situations shall this Agreement be more strongly construed against the County than against the Contractor. A. Any ambiguity or uncertainty in the scope of services shall be interpreted and construed by the County, and the County's decision shall be final and binding upon all parties. B. The passing, approval, and/or acceptance by the County of any of the services furnished by the Contractor shall not operate as a waiver by the County of strict compliance with the terms of this Agreement. Failure on the part of the Contractor, immediately after Notice to Correct a default shall entitle the County, if it sees fit, to correct the same and recover the reasonable cost of such replacement and/or repair from the Contractor, who in any event shall be jointly and severally liable to the County for all damage, loss, and expense caused to the County by reason of the Contractor's breach of this Agreement and/or his failure to comply strictly and in all things with this Agreement and with the specifications. C. The Contractor agrees that the TDC may designate representatives to visit the Contractor's facility (ies) periodically to conduct random open file evaluations during the Contractor's normal business hours. Keys Association of Dive Operators 2 Dive Umbrella-2014 [D#: 1339 D. The Contractor warrants that it has, and shall maintain throughout the term of this Agreement, appropriate licenses and permits required to conduct its business, and that it will at all times conduct its business activities in a reputable manner. Proof of such licenses and permits shall be submitted to the County upon request. 6. Contractor's Financial Records: Contractor shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. 7. Public Access: The County and Contractor shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Contractor in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by Contractor. Pursuant to F.S. 119.0701, Contractor and its subcontractors shall comply with all public records laws of the State of Florida, including but not limited to: (a) Keep and maintain public records that ordinarily and necessarily would be required by Monroe County in order to perform the service. (b) Provide the public with access to public records on the terms and conditions that Monroe County would provide the records and at a cost that does not exceed the cost provided in Florida Statutes, Chapter 119 or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to Monroe County all public records in possession of the Contractor upon termination of the Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to Monroe County in a format that is compatible with the information technology systems of Monroe County. 8. Hold Harmless: The Contractor covenants and agrees to indemnify and hold harmless Monroe County BOCC and the TDC from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Monroe County) and any other losses, damages, and expenses (including attorney's fees) which arise out of, in connection with, or by reason of services provided by the Contractor or any of its Subcontractor(s) in any tier, occasioned by the negligence, errors, or other wrongful act of omission of the Contractor or its subcontractors in any tier, their employees, or agents. Keys Association of Dive Operators 3 Dive Umbrella-2014 ID#: 1339 9. Independent Contractor: At all times and for all purposes under this Agreement the Contractor is an independent Contractor and not an employee of the BOCC. No statement contained in this Agreement shall be construed so as to find the Contractor or any of his employees, contractors, servants, or agents to be employees of the BOCC. 10. Nondiscrimination: The parties agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. The parties agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to, 1) Title VII of the Civil Rights Act of 1964 (PL 88-352), which prohibit discrimination in employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC § 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC §§ 6101-6107), which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, §§ 523 and 527 (42 USC §§ 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC §§ 1201), as amended from time to time, relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) any other nondiscrimination provisions in any Federal or State statutes which may apply to the parties to, or the subject matter of, this Agreement. 11. Assignment/Subcontract: The Contractor shall not assign or subcontract its obligations under this Agreement, except in writing and with the prior written approval of the BOCC and Contractor, which approval shall be subject to such conditions and provisions as the BOCC may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Agreement. 12. Compliance with Law: In providing all services/goods pursuant to this Agreement, the Contractor shall abide by all statutes, ordinances, rules and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Any violation of said statutes, ordinances, rules and regulations shall constitute a material breach of this Agreement and shall entitle the BOCC to terminate this Agreement immediately upon delivery of written notice of termination to the Contractor. The Contractor Keys Association of Dive Operators 4 Dive Umbrella-2014 ID#: 1339 shall possess proper licenses to perform work in accordance with these specifications throughout the term of this Agreement. 13. Disclosure and Conflict of Interest: The Contractor represents that it, its directors, principles and employees, presently have no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required by this Agreement, as provided in Sect. 112.311, et seq., Florida Statutes. County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. Upon execution of this Agreement, and thereafter as changes may require, the Contractor shall notify the County of any financial interest it may have in any and all programs in Monroe County which the Contractor sponsors, endorses, recommends, supervises, or requires for counseling, assistance, evaluation, or treatment. This provision shall apply whether or not such program is required by statute, as a condition of probation, or is provided on a voluntary basis. The County and Contractor warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the Contractor agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 14. Arrears: The Contractor shall not pledge the County's credit or make it a guarantor of payment or surety for any Agreement, debt, obligation, judgment, lien, or any form of indebtedness. The Contractor further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this Agreement. 15. Notice Requirement: Any notice required or permitted under this Agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the following: FOR TDC: Maxine Pacini Monroe County TDC 1201 White Street Key West, FL 33040 Keys Association of Dive Operators 5 Dive Umbrella-2014 ID#: 1339 FOR COUNTY: Christine Limbert-Barrows, Assistant County Attorney PO Box 1026 Key West, FL 33041-1026 FOR CONTRACTOR: Bob Holston Keys Association of Dive Operators, Inc. 3128 North Roosevelt Blvd Key West, FL 33040 16. Taxes: The County is exempt from payment of Florida State Sales and Use taxes. The Contractor shall not be exempted by virtue of the County's exemption from paying sales tax to its suppliers for materials used to fulfill its obligations under this Agreement, nor is the Contractor authorized to use the County's Tax Exemption Number in securing such materials. The Contractor shall be responsible for any and all taxes, or payments of withholding, related to services rendered under this Agreement. 17. Termination: A. The County may terminate this Agreement for cause with seven (7) days notice to the Contractor. Cause shall constitute a breach of the obligations of the Contractor to perform the services enumerated as the Contractor's obligations under this Agreement. B. Either of the parties hereto may terminate this Agreement without cause by giving the other party sixty (60) days written notice of its intention to do so. 18, Governing Law, Venue, Interpretation, Costs and Fees: A. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to Agreements made and to be performed entirely in the State. B. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and Contractor agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. C. The County and Contractor agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. D. Severability. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be Keys Association of Dive Operators 6 Dive Umbrella-2014 ID#: 1339 valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and Contractor agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. E. Attorney's Fees and Costs. The County and Contractor agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. F. Adjudication of Disputes or Disagreements. County and Contractor agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. G. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and Contractor agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. County and Contractor specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 19. Binding Effect: The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Contractor and their respective legal representatives, successors, and assigns. 20. Authority: Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 21. Claims for Federal or State Aid: Contractor and County agree that each shall be, and is, empowered to apply for, seek, and obtain Federal and State funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 22. Privileges and Immunities: All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, Keys Association of Dive Operators 7 Dive Umbrella-2014 ID#: 1339 and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 23. Le-gal Obligations and Responsibilities: Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, state statute, and case law. 24. Non-Reliance by Non-Parties: No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the County and the Contractor agree that neither the County nor the Contractor or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 25. Attestations: Contractor agrees to execute such documents as the County may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free Workplace Statement. 26. No Personal Liability: No covenant or Agreement contained herein shall be deemed to be a covenant or Agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 27. Execution in Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by singing any such counterpart. 28. Section Headings: Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. Keys Association of Dive Operators 8 Dive Umbrella-2014 ID#: 1339 IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be executed the day and year first above written. (SEAL) Board Of County Commissioners Attest:Amy Heavilin, Clerk of Monroe County Dewy Mayor/Chalmian (CORAttest: RATE SEAL) Kep Aase`orlatlon of Dim Oparatora,Inc. 9�cryrtsrY BY Preelder t Print Name Print Name Dater r Dole: 6 AND TWO WITNESSES r- Print Name "" Print Name A Daft: 11 Date►: S_.,/,� /c- MONROE COUNTY ATTORNEY IAPPR VED AS TO FORM: OHRUMNE M.UM13ERT-BARROWS A8$18TANT ATTORNEY Date Keys Amdadw of Diva opwdm 9 Dive Un6mb-2014 IDS: 1339